It still remains a mixed feeling regarding the usefulness or otherwise of FoI act signed into law 13 years ago. SUNNY IDACHABA examines the journey so far.
The word ‘excitement’ initially trailed the enactment of Freedom of Information Act (FOIA) signed into law by former President Goodluck Jonathan in 2011. This was because not only journalists had hitherto complained about their inability to access public information due to unnecessary privacy code, civil society organisations too were handicapped over access to vital public documents that would help to promote good governance. So, when finally, Jonathan appended his signature to the act and it became law, everyone expected that the era of hoarding public information would be a thing of the past; however, many years after, it’s not yet uhuru.
Work in progress?
Probably, owing to the numerous complaints arising from the near/non-implementation of the act, the solicitor-general of the federation who also doubles as permanent secretary in the Ministry of Justice, Mrs. Beatrice Jeddy Agba, recently said the act is still work in progress.
While speaking during the 13th year anniversary of the act, she said it has been work in progress and challenging though for several reasons which she failed to divulge. With the theme, ‘Evaluating the Role of Freedom of Information Act and its Implementation towards Building Strong Institutions for Good Governance,’ one wonders if truly there is any provision in the act to set up an independent mechanism that would drive its implementation towards good governance.
But while assessing its performance since inception, Mrs. Agba cited some lapses to include the lack of a functioning record management system in public institutions, the lack of political will on the part of leaders to ensure the prompt release of information or records and the culture of secrecy in the government agencies.
“The act serves as a guide through whom the public can access vital information or records from the government, but when government officials refuse to share information with the public, it makes citizens unease with the policy.
“It is undisputed that the essence of the act is to guarantee the right of access to information held by government institutions and as well deepen governance and government reforms by addressing corruption and improving the credibility of the country. The implementation of FOI Act in the last 13 years has, however, come with a series of benefits and challenges though.
“It is of great importance to commend the courts on their prompt rulings on FoI matters which have deepened its implementation.”
Speaking on the matter, the company secretary and legal adviser, Development Bank of Nigeria, Shofola Osho, applauded the FoI despite all the odds. He, however, stressed the need for more commitments and review of certain aspects of the act.
“For me, I think for a small team to have pushed through and done well in terms of implementations covering over 900 institutions in the last 13 years, is commendable, but I also think there should be a review just as open governance and accountability is also key,” he said.
Concerns
Investigations have revealed that since its creation in 2011, the Act has not had a standing working structure serving as an independent body to drive it. It essentially existed as an ad hoc unit in the Ministry of Justice. In many states too, it merely exists on paper, hence access to public information for scrutiny has essentially remained elusive.
“It is for this reason that SERAP had always been in court against almost every government agency because of lack of information,” said Idorita Anyanaba, a lawyer. According to Idorita, “Fake news thrives in an atmosphere where information that should be in the public space is hoarded and that is what the FOI act was created to address. Organisations like SERAP feel that since public institutions foot-drag in releasing crucial information to the public, there is something they are hiding and the only way to compel them to release such information is to invoke the relevant judicial interpretation to it.”
Worried by all those developments especially as it concerns inaccessibility to transparency in public institutions, SERAP deputy director, Kolawole Oludare, said as far as SERAP is concerned, responses submitted to FoI requests is less than 10 per cent and positive responses are less than two per cent.
He said, “This shows the challenges that we have with transparency and accountability as a key part of good governance particularly in the democracy that we are.”
According to him, the aim of SERAP is in public interest, to make sure Nigerians have access to information and are able to use such an accountability tool against public office holders.
Domesticating the Act
While concerns are being raised concerning the usefulness of FoIA, it has been discovered that in many states, the act is non-existent. For instance, according to an online radar agency, Monitor.Yafrica, “For over a decade after the FOI act was passed, many states are yet to domesticate it or create a similar mechanism to promote transparency and accountability in government.”
The agency’s lead researcher, Olamilekan Omidiji, said, “This is further compounded by conflicting judicial pronouncements by the Court of Appeal. One judgement says that it is applicable throughout the country; yet another one says it does not apply to states because it is a federal enactment.
“Only Ekiti, Delta and Lagos have so far domesticated the act while a few other states have a similar mechanism such as Open Governance Partnership to ensure transparency and accountability. No fewer than 16 states are yet to domesticate the act or create a similar mechanism. These states are Imo, Anambra, Plateau, Akwa Ibom, Edo, Osun, Kogi, Nasarawa, Niger, Kano, Sokoto, Bauchi, Adamawa, Ogun, Taraba and Yobe. This is contrary to the tenets of democracy since it’s all about open, transparent and accountable government.”
Awareness
On the other hand, investigations by Blueprint Weekend showed that there isn’t enough awareness about the workings of FOI act, the reason for which it remains relatively unknown. For instance, according to the annual performance report for 2014, 2015, and 2016 prepared by the Attorney General Office, over 53 percent of government agencies received just one or no request for information within those three years.
Again, in 2014, for instance, at least 60 public institutions submitted FoI reports out of which 26 of them received no request from the public while 12 received just one request for information while the remaining 22 received requests for information ranging from two to 133.
Responding to this, Lanre Arogundade, a founding member of Freedom of Information Coalition, said, “Ignorance, non-availability of institutional framework among others are factors responsible for the poor use of the provisions of the act.”
According to him, “First is the issue of awareness on the part of the public. People don’t know that there is an act which gives them the licence to request for information for them to use. Also, there is the lack of institutional framework on the part of the government. We also need to talk about the attitude of some state governments who claim that they are not bound by the FoI Act. This is wrong and it discourages people from seeking information from them.
“There is therefore a great need for public awareness. This is for people to realise that they have the right to request for information from public institutions. The government should also put in place an institutional framework that promotes access to information. All government agencies should have FoI officers and their contacts should be made available to the public.”
Further concerns
The US Mission Nigeria on its part had noted in 2021 that the FoI act passed years back reflects the desire to be accountable to Nigerians; however, the mission says differences may be seen in the law’s implementation, as the Act has not received the much-needed attention from the public, especially journalists.
“The need to ensure the full implementation of the act is pertinent and if the avenues provided in the act to ask questions are not put to use, the struggle of those who fought for the passage of the Act would be futile,” it stated.
The Mission noted with dismay that in some quarters, it has been alleged that while some government entities allow easy access, others refuse, especially in some states within the federation where little or no willingness to implement the law has been demonstrated, not unlike the experience of many democracies around the world.
“Apart from this, lack of awareness has also marred the full implementation of the act,” it noted further.
The Act
The Act sets forth the right to access information or documents maintained by public organisations regardless of whether it is in printed, electronic, or in other media forms. It, however, said public institutions are not required to provide all the information they retain, but are required to provide information that is excluded under the FoI act like issues that bother on personal privacy and national security, among others too like Official Secrets Act, Criminal Code Act, Evidence Act, Penal Code Act, Public Complaints Commission Act, and National Security Act. As Mrs. Agba said, it is expected that the works going on behind the scene would soon mature to spark openness in information sharing by public institutions.
